COUNCIL OF
THE EUROPEAN UNION / Brussels, 1 September 2005
11838/05
LIMITE
COPEN130
EJN49
EUROJUST53

NOTE

from: / Polish delegation
to: / Delegations
Subject: / Decisions of Supreme Courts and Constitutional Courts concerning the European Arrest Warrant

Delegations will find for their information in Annex A a summary of a decision of the Supreme Court of Poland concerning the European Arrest Warrant and in Annex B the Decision.

______

11838/05HGN/ld1

DG H 2 EN/PL

ANNEX A

Judgement of 27 April 2005,P 1/05

Review protected by copyright[1]

APPLICATION OF THE EUROPEAN ARREST WARRANT

WITH REGARD TO POLISH NATIONALS

Type of proceedings:
Reference for preliminary ruling from a court
Initiated by:
Circuit Court (sąd okręgowy) in Gdańsk / Composition of the panel:
Full panel / Differing opinions:
0

1.1.Object of control Model of control

Admissibility of surrender of Polish nationals to other states of the European Union pursuant to the European arrest warrant
[Act of 6 June 1997 Code of Criminal Procedure: Article 607t § 1 (added in 2004)] / Prohibition to extradite Polish nationals
[Constitution: Article 55 (1)]

On 13 June 2002 the Council of the European Union adopted the Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). This decision is a source of secondary EU law within the framework of the so-called pillar III of the European Union (cf. Article 34 [former K.6] (2)(b) of the Treaty on the European Union).

The Framework Decision of 13 June 2002 constitutes a reaction of the EU Member States to undesirable side effects of the free movement of persons between the states that require new forms of cooperation for the purpose of combating serious crimes.

Pursuant to the definition in Article 1 (1) of the Framework Decision of 13 June 2002, the European arrest warrant (EAW) is “a judicial decision issued by a Member State with a view to arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”

Basically, the obligation to execute EAW exists also when a person concerned is a national of the requested state. The requested state may refuse to surrender its own national only when the warrant has been issued for the purposes of executing a custodial sentence or detention order already adjudicated and that State undertakes to execute the sentence or detention order in accordance with its domestic law (Article 4 item 6 of the Framework Decision). However, if EAW was issued for the purpose of prosecution of an offence in respect of which no decision has been passed yet, the state obliged to execute the warrant may subject the surrender of its national to the condition that the custodial sentence would be served or a detention order would be executed in that State (Article 5 item 3 of the Framework Decision).

Moreover, the Framework Decision gives up the principle of the so-called double criminality, which is characteristic to the classic institution of extradition between states. Pursuant to this principle, for the extradition to be possible it is necessary to recognise an act as an offence also in a state that surrenders a person sentenced or suspected. However, in the case of numerous acts listed in the Framework Decision of 13 June 2002, in order to surrender a person under EAW it is sufficient if the act is considered an offence in the issuing State. Also the political nature of an offence makes no impediment to the execution of EAW.

The EAW surrender procedure is simpler as compared to the classic extradition procedures. It transpires, for example, from the fact that arrest warrants are transmitted directly between the competent judicial authorities, without the use of a diplomatic channel or other indirect links.

Poland, in consequence of its accession to the European Union on 1 May 2004, committed itself to a complete implementation of the Framework Decision of 13 June 2002. In order to fulfil this obligation it was necessary mainly to transpose the text of the Framework Decision into Polish legislation (framework decisions passed within pillar III of the EU, like directives issued within pillar I, have no direct effect on individuals).

In the legal doctrine there are differing opinions as to whether in the light of Article 55 (1) of the Constitution of the Republic of Poland of 2 April 1997, which forbids “extradition” of Polish nationals, it is admissible for Poland to apply the institution of the EAW with regard to its nationals. Apart from the opinions pointing to the necessity to make a suitable amendment of the Constitution, there were also opinions – to which reference was made by the Marshal of the Sejm and the Attorney General in the proceedings before the Constitutional Tribunal – stating that “surrender” under EAW is a notion distinct from the notion of “extradition” under international law, which (according to the authors of these opinions) is also reliable in the light of Article 55 (1) of the Constitution.

Polish legislator decided to transpose the Framework Decision of 13 June 2002 by way of amending the Code of Criminal Procedure, without accompanying changes to Constitution. The said amendment in the criminal procedure was made in the Act of 18 March 2004, which changed several criminal law acts. Two new chapters were added to the Code of Criminal Procedure: chapter 65a, which governs the situations where Polish court issues EAW, and chapter 65b, which refers to situations where an arrest warrant issued by a court in another EU Member State concerns a person that stays in Poland. At the same time the legislator ensured that extradition and surrender under EAW were differentiated in terms of terminology: in the amended Article 602 of the Code of Criminal Procedure, contained in chapter 65 (entitled “Extradition and transportation of prosecuted or sentenced persons or delivery of material objects on the requests by foreign states”), “extradition” is defined in such a way that the surrender under EAW, as regulated in chapter 65b, is excluded from the scope of the term.

The Code contains no provision stating directly that surrender from the Polish territory pursuant to EAW may also concern a Polish national. Such a conclusion, however, can be drawn from some of the provisions contained in chapter 65b, interpreted in connection with the Framework Decision of 13 June 2002. Namely, Article 607p of the Code of Criminal Procedure, which determines obligatory grounds for the refusal to execute EAW, does not stipulate that the Polish nationality of a person concerned could provide a ground for the refusal to execute such a warrant (compare: Article 604 of the Code of Criminal Procedure, which concerns extradition, provides that it is inadmissible if the person concerned is a Polish national or has a right of asylum in Poland). Articles 607s and 607t, in turn, provide for certain restrictions as to the execution of the EAW in respect of Polish nationals and persons exercising their right of asylum in Poland, treated in the same way.

Two latter articles of the Code of Criminal Procedure diversify the application of the EAW in respect of Polish nationals, depending on whether EAW has been issued for the purpose of executing a custodial sentence (or detention order) imposed, or for the purpose of conducting a criminal prosecution. Situations of the first type are covered by Article 607s § 1, which stipulates that EAW may not be executed in respect of a Polish national if he/she does not consent to surrender; in that situation the penalty is executed in Poland (Article 607s §§ 3 to 5). Situations of the second type are covered by Article 607t § 1, which was challenged in this case: “In case the European warrant was issued for the purpose of prosecution of a person who is a Polish national or exercises his/her right of asylum in the Republic of Poland, surrender may take place upon the condition of sending the person back to the territory of the Republic of Poland after the valid and final conclusion of the proceedings in the State that issued the European warrant.”

The proceedings concerning this case before the Constitutional Tribunal was initiated by the adjudicating panel of the Circuit Court (sąd okręgowy) in Gdańsk, which examined the request from the prosecutor’s office for the decision on surrender pursuant to EAW of a Polish national Maria D. for the purpose of criminal proceedings against her in the Kingdom of the Netherlands.

The date of postponing the end of the binding force of the provision inconsistent with the Constitution, which was determined in part II of the sentence, runs from the date of publication of the judgement in Dziennik Ustaw (which took place on 5 May 2005). Reasons for the judgement indicate that the legislator may cause to avoid the effects of the lack of adjustment of the Polish law to the requirements of the Framework Decision – through an appropriate amendment of the Constitution and then through establishing a new statutory provision, which was considered as non-compliant with the Constitution by virtue of this judgement (cf. below theses 10 and 14 to 16).

DECISION OF THE TRIBUNAL

I

Article 607t § 1 of the Code of Criminal Procedure, to the extent that it permits surrender of a Polish national to a Member State of the European Union under the European arrest warrant is inconsistent with Article 55 (1) of the Constitution of the Republic of Poland.

II

The Tribunal has postponed the end of the binding force of the challenged provision for 18 months as from the date of publication of the judgement in Dziennik Ustaw.

MAIN THESES IN THE REASONS FOR JUDGEMENT
  1. The nature of constitutional notions is autonomous compared to binding acts of a lower rank. The meaning of terms that were used in ordinary acts may not determine the interpretation of constitutional provisions; otherwise the guarantees that are contained in these provisions would lose any sense. These are the constitutional norms that impose the way and the direction of the interpretation of the provisions of the acts. In turn, the starting point for the interpretation of constitutional notions is the meaning of the terms used in the text of the Constitution that was historically shaped and determined in the legal doctrine.
  1. Traditionally, in the Polish legal language the term “extradition” (“ekstradycja”) was replaced by the word “transfer” (“wydanie”). It was the case in the Code of Criminal Procedure of 19 April 1969, and then in the same Code of 6 June 1997 (until its amendment dated 18 March 2004). Therefore, it should be assumed that in the Constitution of the Republic of Poland of 2 April 1997, which is in force, “extradition” was equated with “transfer” as a notion meaning the legal institution consisting in the transfer of a prosecuted person on the request of a foreign state for the purpose of criminal proceedings against that person or execution of penalty imposed on that person. By using in the Constitution of 1997 the notion of “extradition” and by giving the constitutional importance to the prohibition to extradite Polish nationals, the legislator – even if he anticipated the future Polish membership in the EU – could not take into account the provisions concerning the European arrest warrant. It is because it was no sooner than by virtue of the Framework Decision of the Council of the European Union of 13 June 2002 on the European arrest warrant and the surrender procedures between the Member States (2002/584/JHA) that the surrender of own nationals prosecuted under EAW became an obligation of the EU Member States.
  1. Crucial discrepancies between “surrender” under EAW and “extradition” pursuant to the Code of Criminal Procedure, which was amended in 2004 may not determine that the first term is not an extradition within the autonomous constitutional meaning, adopted in Article 55 (1) of the Constitution (cf. thesis 1). It is because the Constitution does not regulate the aspects, which determine the differences between the two institutions from the point of view of the Code. Surrender of a prosecuted person under EAW could only be considered an institution different from extradition referred to in Article 55 (1) of the Constitution if its essence was also different. However, since the sense (core) of extradition is to give away a person prosecuted or convicted to a foreign state for the purpose of conducting criminal prosecution against him/her or executing a custodial sentence imposed on him/her, surrender of a person prosecuted under EAW for the purpose of conducting criminal prosecution against that person in the territory of an EU Member State or executing a custodial sentence or detention order must be considered a type of extradition within the meaning adopted pursuant to Article 55 (1) of the Constitution.
  1. The prohibition of extradition, which was formulated in the above provision of the Constitution, expresses the right of a Polish national to be held criminally liable before a Polish court. Surrender of a national pursuant to EAW to another Member State of the European Union would make it completely impossible to exercise this right, and as such it would make an infringement of its essence, which is inadmissible by virtue of Article 31 (3) of the Constitution. Therefore, it should be assumed that the prohibition to extradite a Polish national, which was formulated in Article 55 (1) of the Constitution is of an absolute nature and the subjective personal right of nationals that derives from it may not be subject to any restrictions.
  1. Along with Poland’s accession to the EU, the nationals of the Republic of Poland have become the EU nationals at the same time. This fact makes an argument for the advisability of excluding, by way of a suitable amendment of Article 55 (1) of the Constitution, the prohibition to extradite Polish nationals to the EU Member States. It is not, however, a sufficient ground to infer the existence of such an exclusion by way of a dynamic interpretation of this provision. It is decisive that the Constitution relates the fact of having Polish nationality to a certain set of rights and obligations of an individual (independent of rights and obligations to which “any person” who is within the jurisdiction of the Republic of Poland is entitled). Holding a Polish nationality must, in consequence, be a crucial criterion for the assessment of the legal status of an individual – both as regards the state’s duties in respect of its nationals (especially when they are formulated as categorically as it is the case in Article 55 (1) of the Constitution), and as regards nationals’ duties in respect of the state, which are linked to each other (cf. Article 82 and 85 of the Constitution). Moreover, it should be noted that the surrender procedure pursuant to EAW is not just a consequence of introducing the institution of “the EU nationality,” but rather a reaction to the precedent right of the nationals of the EU Member States to free movement and residence in the territory of another Member State.
  1. The Code contains no provision stating expressis verbis that surrender from the territory of the Republic of Poland of a prosecuted person pursuant to EAW also concerns Polish nationals. However, such a norm should be inferred from Article 607t § 1 in connection with Article 607p of the Code of Criminal Procedure, which among the grounds for obligatory refusal to execute EAW does not mention the Polish nationality of a prosecuted person.
  1. Although the obligation to implement secondary EU law, including Framework Decisions issued within the framework of the EU pillar III (cf. Article 32 of the Treaty on European Union as amended by the Amsterdam Treaty), results from Article 9 of the Constitution of the Republic of Poland, the very fact that the domestic act was issued for the purpose of implementation of secondary EU law does not guarantee substantive compliance of this act with the norms contained in the Constitution.
  1. The necessity to interpret the domestic law in compliance with the EU law has some limitations. Particularly, as it follows from the case law of the Court of Justice of European Communities, instruments of the EU secondary law may not by themselves (without appropriate changes in domestic legislation) deteriorate the situation of individuals, in particular in the field of criminal liability. It is beyond any doubt that surrender of a prosecuted person pursuant to EAW for the purpose of criminal proceedings in connection with a conduct, which according to the Polish law is not an offence, must result in deterioration of the situation of the suspected person.
  1. The fundamental systemic function of the Constitutional Tribunal is the examination whether normative acts are in compliance with the Constitution. The Tribunal is not exempted from this duty also when the objection of the lack of compliance with the Constitution refers to this part of an act, which aims at the implementation of the EU law.
  1. Due to the contents of Article 9 of the Constitution and the obligations resulting from Poland’s membership in the European Union it is inevitable to amend the binding law in such a way that it would allow for a complete and, at the same time, consistent with the Constitution implementation of the Framework Decision of 13 June 2002. For the successful implementation of this task it is necessary to make a suitable amendment of Article 55 (1) of the Constitution, so that this provision stipulates an exception from the prohibition to extradite Polish nationals, which would make it possible to surrender them pursuant to EAW to other EU Member States.
  1. The possibility, provided for in Article 190 (3), of postponing in the judgement of the Constitutional Tribunal the date for the end of the binding force of the provision considered as inconsistent with the act situated higher in the hierarchy, is not limited to the cases of an abstract control of norms but it may also be applied with regard to control of norms initiated with a reference for preliminary ruling or a complaint concerning infringement of a constitutional norm.
  1. The contents of Article 190 of the Constitution leave a considerable discretion to the Tribunal as regards the exercise of its competence to postpone the entry into force of its judgement – both as to the principle and as to the determination (within the confines provided for in the discussed provision) of the duration of the period of postponement. However, the discretion does not mean freedom. It is because the discussed postponement is tantamount to temporary leaving in legal use of the provision considered as inconsistent with the act situated higher in the hierarchy of the system of sources of law. Thus, it must always be applied as an exception – accepted by the legislator - from the principle of hierarchical compliance of the legal system and the principle of superiority of the Constitution. Any decision concerning the application of such postponement should be based on finding a balance between the values infringed in consequence of the prolonged application of the provision inconsistent with the Constitution on the one hand and the values related to the postponement on the other.
  1. The norm contained in Article 31 (3) of the Constitution, which concerns the limitations upon the Constitutional freedoms and liberties of individuals, does not refer directly to the application of the postponement stipulated in Article 190 (3) of the Constitution. It is therefore admissible that the Tribunal exercised the possibility of postponing the date of entry into force of its judgement because of the values other than those referred to in Article 31 (3) (security and public order, protection of the natural environment, health and public morals, freedoms and rights of other persons), or even – when necessary – with a result of a temporary uphold of the provisions that limit the constitutional freedoms and rights.
  1. Although a judgement of the Constitutional Tribunal concerning the postponement of the date for the end of the binding force of the provision inconsistent with the Constitution does not eliminate that provision from the legal order with an immediate effect, it causes a duty in respect of the legislator to undertake actions leading to a quick elimination of the faults in the legal regulation, indicated by the Tribunal, if possible even before the date determined in the Tribunal judgement. Thus, the end of the binding force of the provision on the elapse of this time may be perceived as a sanction in case the imposed obligation was not complied with.
  1. Taking into account the fact that the procedure of amending the Constitution is complex and demanding (also in terms of time) and the fact that Poland has been obliged to implement the Framework Decision of 13 June 2004 since the date of its accession to the EU, i.e. since 1 May 2004, the Tribunal decided (in part II of the sentence) to postpone the end of the binding force of a norm that infringes the Constitution for a period of 18 months, i.e. the maximum period of postponement, which is provided for in Article 190 (3) of the Constitution.
  1. Since the Constitutional Tribunal does not have a possibility of making its decision concerning the end of the binding force of the provision inconsistent with the Constitution conditional (to consider the examined norm as consistent with the Constitution under the condition of the prospective amendment of the Constitution, in the present case: Article 55 (1)), the implementation of the Framework Decision of 13 June 2002 that would be compliant with the Constitution, with regard to matters covered by this judgement, will require not only a suitable amendment of the Constitution but also the passing of an amending act that will restitute – in a changed Constitutional provisions – a norm considered by virtue of this judgement (part I of the sentence) as inconsistent with the Constitution.
  1. The institution of EAW has crucial importance for the proper functioning of the justice system, but first of all – as a form of cooperation between the Member States aiming at combating crime – for strengthening security. Therefore, ensuring its continued functioning should be the most important priority for the Polish legislator. The absence of appropriate legislative actions before the date determined in part II of this judgement would not only mean the infringement of the constitutional duty for Poland to comply with international law binding upon it but it also could result in serious consequences from the point of view of the EU law.
  1. The Constitution provides for no exception from the principle of universal binding force of judgements of the Constitutional Tribunal, which is stipulated in Article 190 (1).
  1. The effect of the postponement of the end of the binding force of Article 607t § 1 of the Code of Criminal Procedure is that within the period of 18 months from the publication of the present judgement this provision, unless prior repealed or changed by the legislator, should be applied by the justice system. As long as this provision will be binding, the Polish courts may not refuse its application on the grounds of its inconsistency with Article 55 (1) of the Constitution.
  2. Since the Constitutional Tribunal is limited by the scope of the reference for preliminary ruling (Article 66 of the Act on the Constitutional Tribunal), where this scope in turn is determined by the subject matter of the case examined by the court that makes this reference (Article 193 of the Constitution), the subject to adjudicate on in the present case may not be the issue of compliance of norms making it possible to surrender under EAW of a person suspected of a non-violent offence for political reasons with Article 55 (2) of the Constitution.

Provisions of the Constitution of the Republic of Poland, the Act on the Constitutional Tribunal and the Treaty on European Union